Jump to content

Discovery Advice (in CA): Asset Acceptance, Account Stated, RFPOD, Plaintiff Late Response, Request for Further Response, Case Management


Recommended Posts

Hi All! I've posted about my case before. I was thinking about trying for arbitration, but I wasn't sure. I'm pretty much in the same position as ReadyToWininCA was a little while ago. Maybe there is a forum for junk debt lawyers out there, because it seems like two different law offices are sending RTWinCA and I the exact same responses.

 

First  some facts:

  • I'm being sued by Asset Acceptance for about 3,000.
  • I was served about seven months ago on open account and account stated. The case is within the SOL.
  • I filed my answer and then requested a BOP. They never responded to my BOP request, choosing to file a motion to dismiss the open account cause of action.
  • I sat on it for a while not sure what to do, but I finally started discovery. I sent a request for docs (following RTWinCA's strategy of very limited, pointed requests geared toward account stated).
  • They did not respond by 30+5 days, so I sent a M&C letter with a deadline.
  • They did finally send me a response (the exact same documents and responses that RTWinCA received), but they sent it several days after the deadline I gave (date on response is after deadline, mailed after deadline, received after deadline).

 

I was planning to writing back to them asking for a more complete, compliant response (same as RTWinCA did). 

 

First question:

Is asking for more information the best idea? Would it be better to let it go and try to get it thrown out as heresay at trial (CCP 96/subpoena witness) since they say they have no further information at this point. They have admittedly done no work on the case (they said so in the response). I don't think they will try either, because they haven't sent any discovery requests to me.

 

Second question:

If I do follow in RTWinCA's footsteps and ask for further response is the end goal to (hopefully) get them to admit they don't have the documents they referred to in their complaint AND get what they do have thrown out as heresay, thereby killing their standing?

 

Third question:

Since they did not send the response in a timely manner (aka 30+5 days from my initial request) does that mean they waived their rights to object to my requests under CCP 2030.290? I did not mention this in my M&C letter and they included objections in their answers. Are their objections automatically invalid or would I have to file a motion to strike later down the road?

 

Fourth question:

They are not allowed to send illegible docs, right? The cardholder agreement they sent was completely illegible (copied uber small). I want to get an actual copy of it.

 

Fifth question:

We haven't done anything in terms of Case Management. They didn't send me the required information about Case Management with my complaint. I looked it up and found out we were supposed to meet & confer by phone and the plaintiff was supposed to file a joint case management statement within 180 days of the complaint (which has passed). We won't have a case management conference unless a judge decides we should. We haven't talked at this point, I've just sent letters about BOP/discovery. They haven't filed the joint statement either. We also don't have a trial date either. How bad is this? Should I get to calling them ASAP?

 

 

Thanks for any advice! I'm not sure where I'm going to end up with this. I'm freaked out about going to court and I feel like  I'm fumbling what I have done already. Even though I've been reading the CCP and court rules I don't feel confident and I don't think I have enough time to dedicate to my case. I may still try for arbitration once I get my hands on a legible copy of the cardholder agreement or maybe even settle (bad, I know).

 

 

Edited to add some links and do some spell checking. =)

Link to comment
Share on other sites

Hi All! I've posted about my case before. I was thinking about trying for arbitration, but I wasn't sure. I'm pretty much in the same position as ReadyToWininCA was a little while ago. Maybe there is a forum for junk debt lawyers out there, because it seems like two different law offices are sending RTWinCA and I the exact same responses.

 

First  some facts:

  • I'm being sued by Asset Acceptance for about 3,000.
  • I was served about seven months ago on open account and account stated. The case is within the SOL.
  • I filed my answer and then requested a BOP. They never responsed to my BOP request, choosing to file a motion to dismiss the open account cause of action.
  • I sat on it for a while not sure what to do, but I finally started discovery. I sent a request for docs (following RTWinCA's strategy of very limited, pointed requests geared toward account stated).
  • They did not respond by 30+5 days, so I sent a M&C letter with a deadline.
  • They did finally send me a response (the exact same documents and responses that RTWinCA recieved), but they sent it several days after the deadline I gave (date on response is after deadline, mailed after deadline, recieved after deadline).

 

I was planning to writing back to them asking for a more complete, compliant response (same as RTWinCA did). 

 

First question:

Is asking for more information the best idea? Would it be better to let it go and try to get it thrown out as heresay at trial (CCP 96/subpoena witness) since they say they have no furture information at this point. They have admittedly done no work on the case (they said so in the response). I don't think they will try either, because they haven't sent any discovery requests to me.

I don't know what doc's they sent (I'm sure its insufficiant) if you did not get what you asked for: bill of sale, proper proof of assignment, list of charges, etc. I would now (if you have not already) send a meet and confer letter asking for complete response to discovery within 10 days or you will file a motion to compel discovery, then file that motion with the court.

Second question:

If I do follow in RTWinCA's footsteps and ask for further response is the end goal to (hopefully) get them to admit they don't have the documents they referred to in their complaint AND get what they do have thrown out as heresay, thereby killing their standing?

End goal: dismiss with prejudice. They will never admit they don't have evidence. They want you to settle. Keep pressure on them, your amount is small, if you make them work on the case they will want to drop it. Keep fighting standing and demand proof of accounting from $ 0 to total due.

-

Third question:

Since they did not send the response in a timely manner (aka 30+5 days from my initial request) does that mean they waived their rights to object to my requests under CCP 2030.290? I did not mention this in my M&C letter and they included objections in their answers. Are their objections automatically invalid or would I have to file a motion to strike later down the road?

Nothing is going to be automatic. I doubt the judge will stick them with waiving rights, but you might mention it in my motion to compel & meet and confer letter. If you already sent the meet and confer for the discovery then it may be time to motion the court to compel discovery.

Fourth question:

They are not allowed to send illegible docs, right? The cardholder agreement they sent was completely illegible (copied uber small). I want to get an actual copy of it.

They are allowed to get away with anything you do not object to.

 

Fifth question:

We haven't done anything in terms of Case Management. They didn't send me the required information about Case Management with my complaint. I looked it up and found out we were supposed to meet & confer by phone and the plaintiff was supposed to file a joint case management statement within 180 days of the complaint (which has passed). We won't have a case management conference unless a judge decides we should. We haven't talked at this point, I've just sent letters about BOP/discovery. They haven't filed the joint statement either. We also don't have a trial date either. How bad is this? Should I get to calling them ASAP?

Probably not bad. Check the local rules, see how long the cmc statement needs to be filed before the cmc. You might call the lawyer fill out your CMC, file it, and send them copy, It will keep them working on the case. Only talk to the lawyer (carefully) he needs to get the impression you will go to trial with this. Don't let them talk you into setlement.

 

Thanks for any advice! I'm not sure where I'm going to end up with this. I'm freaked out about going to court and I feel like  I'm fumbling what I have done already. Even though I've been reading the CCP and court rules I don't feel confident and I don't think I have enough time to dedicate to my case. I may still try for arbitration once I get my hands on a legible copy of the cardholder agreement or maybe even settle (bad, I know).

Don't think that way. For 3k the lawyer is going to advise CACH to dismiss if you properly fight them. If you were going to settle you could do that at the last second. Maybe you can go watch some live court cases and check court case files (see how people fought, if you can find one) It will help prepare you. Keep pressure on them and you can make them dismiss the case.

Link to comment
Share on other sites

Here's how I see it. We know that these guys don't have the evidence or the witnesses to back up their case. Really the key is the witness. Unless it's for a large amount they aren't going to pay for a witness from both their company and the OC to show up. So even if they had an ok case with the evidence that they supply in discovery they would still have to bring a witness. As long as you attack the CCP 98 you will force them to bring a witness and all will be well. If you send the CCP 96 then they will be locked in and can't try to hit you with anything you aren't ready for at trial.

 

So with that said you could go the MTC route. It's more work and you sound stressed but I do have a MTC in my link below. On the other hand you could just do like I did and go silent and let them think you are lost or just waiting for trial. Then drop the CCP 96. If you go quiet I bet they won't focus anymore resources on your case to save money since that's what this is all about.

 

You can use my docs to help lighten the work load too if you want. I've got links to them here. Really you just have to weigh the pros and cons and make the call.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.